Hardy v. Clarke

Filing 24

MEMORANDUM OPINION. READ OPINION for complete details. Signed by District Judge Henry E. Hudson on 06/21/2017. Copy mailed to Petitioner as directed.(ccol, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

VERNAL TIMOTHY HARDY,

L

p

UN 2 12017
RICHMOND. VA

HAROLD W. CLARKE,

Respondent.
MEMORANDUM OPINION

(Adopting Report and Recommendation and Dismissing Action)

Vernal Timothy Hardy, a Virginia inmate proceeding pro se, filed this petition for
habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his
convictions in the Circuit Court for the County of Loudoun, Virginia ("Circuit Court").

On May 23, 2017, the Magistrate Judge issued a Report and Recommendation wherein he
recommended dismissing Burrell's § 2254 Petition without prejudice because of Hardy's
failure to exhaust state court remedies. (ECF No. 22.) Hardy has filed objections. (ECF

No. 23.) For the reasons that follow. Hardy's objections will be overruled, the Report
and Recommendation will be accepted and adopted, and the action will be dismissed.
THE REPORT AND RECOMMENDATION

The Magistrate Judge made the following findings and recommendation:
A.

p-v

Ly

CLERK. U.S. DiSTfliCT COURT

Civil Action No. 3:16CV963-HEH

I.

—\

b

Petitioner,
V.

E

Procedural History

On February 22, 2016, Hardy pled guilty in the Circuit Court to one
count of distribution of a Schedule One or Two controlled substance, and

one count of possession with intent to distribute a Schedule One or Two
Controlled Substance. (ECF No. 18-2, at 1-6.) On June 1, 2016, the
Circuit Court entered judgment and sentenced Hardy to an aggregate

sentence of ten years of incarceration, with five years suspended. (ECF No.
18-1, at 2-3.)'
Hardy did not appeal. On August 12, 2016, he filed a pro se letter
asking for reconsideration of his sentence based upon his background.
(ECF No. 18-7, at 1-8.) On August 22, 2016, Hardy filed a second pro se
letter requesting reconsideration of his sentence. (ECF No. 18-8, at 1-12.)
In this letter. Hardy described why he believes trial counsel rendered
ineffective assistance. (Id. at 1-4.) The Circuit Court did not consider
these letters, as they were exparte communications with the Court. (ECF
No. 18-10, at 1; ECF No. 18-11, at 1.) On October 12, 2016, Hardy filed a
pro se Motion for Reconsideration, requesting reconsideration of his
sentenced based upon his "excellent disciplinary record" while
incarcerated. (ECF No. 18—9.) The Circuit Court denied the Motion for

Reconsideration on February 10, 2017.^
On December 7, 2016, the Court received Hardy's § 2254 Petition.

In his § 2254 Petition, Hardy vaguely asserts that he received ineffective
assistance from counsel in connection with his guilty plea and sentencing,

and he complains about his plea. (§ 2254 Pet. 6-10.) He acknowledges
that he only filed a Motion for Reconsideration of his sentence. {Id. at 6, 78.)
B.

Exhaustion and Procedural Default

Before a state prisoner can bring a § 2254 petition in federal district
court, the prisoner must first have "exhausted the remedies available in the
courts of the State." 28 U.S.C. § 2254(b)(1)(A). State exhaustion "'is
rooted in considerations of federal-state comity'" and in Congressional
' The CircuitCourt sentenced Hardy to five yearsof incarceration on the

distribution charge, and five years of incarceration, all suspended onthe
possession with intent to distribute charge, to be served consecutively. (ECF No.
18-1, at 2.)

^See http://www.courts.state.va.us/main.htm (select "Case Status and
Information;" select "Circuit Court" from drop-down menu; select hyperlink for
"Case Information;" select"LoudonCircuitCourt"from drop-down menu and

follow "Begin" button; type "Hardy, Vemal," and then follow "Search byName"
button; then follow hyperlinks for"CR00028677-00" and "CR00028677-Or').
"The Circuit Court's docket is accessible through the Virginia Judicial System
Website. Federal Courts in the Eastern District of Virginia regularly take judicial
notice of the information contained on this website." McClain v. Clarke, No.

3:13CV324, 2013 WL 6713177, at *1 n.6 (E.D. Va. Dec. 18,2013) (citations
omitted).

determination via federal habeas laws "that exhaustion of adequate state

remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359
F. Supp. 2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411
U.S. 475, 491-92 & n. 10 (1973)). The purpose of the exhaustion
requirement is "to give the State an initial opportunity to pass upon and
correct alleged violations of its prisoners' federal rights." Picard v.
Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted).
Exhaustion has two aspects. First, a petitioner must utilize all available
state remedies before he can apply for federal habeas relief. See O'Sullivan
V. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has
used all available state remedies, the statute notes that a habeas petitioner
"shall not be deemed to have exhausted the remedies available in the courts

of the State ... if he has the right under the law of the State to raise, by any
available procedure, the question presented." 28 U.S.C. § 2254(c).
The second aspect of exhaustion requires a petitioner to have offered
the state courts an adequate "'opportunity'" to address the constitutional
claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29

(2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional
internal quotation marks omitted). "To provide the State with the necessary
'opportunity,' the prisoner must 'fairly present' his claim in each
appropriate state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal nature of the
claim." Id. (quoting Duncan, 513 U.S. at 365-66). Fair presentation
demands that a petitioner must present "'both the operative facts and the
controlling legal principles' associated with each claim'" to the state courts.

Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v.
Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that
a claim has been exhausted in accordance with a "state's chosen procedural

scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95
(4th Cir. 1994).

In Virginia, to exhaust state remedies, a "petitioner must present the
same factual and legal claims raised in the instant petition to the Supreme
Court of Virginia either by way of (i) a direct appeal, (ii) a state habeas
corpus petition, or (iii) an appeal from a circuit court's denial of a state
habeas petition." Sparrow v. Dir., Dep't of Corr., 439 F. Supp, 2d 584, 587
(E.D. Va. 2006); see also Va. Code Ann. § 8.01-654(A)(1) (West 2017).
"Whichever route the inmate chooses to follow, it is clear that [the inmate]

ultimately must present his [federal habeas] claims to the Supreme Court of
Virginia and receive a ruling from that court before a federal district court
can consider them." Banks v. Johnson, No. 3:07CV746-HEH, 2008 WL

2566954, at *2 (E.D. Va. June 26, 2008) (second alteration added) (quoting
Graham v. Ray, No. 7:05cv00265, 2005 WL 1035496, at *2 (W.D. Va.
May 3,2005)); see also Sparrow, 439 F. Supp. 2d at 587.

Here, the claims raised by Hardy have not been raised before the
Supreme Court of Virginia. Hardy may still file a petition for a writ of
habeas corpus raising his present claims with the state court. See Va. Code
Ann. § 8.01-654(A)(2) (West 2017) (requiring that a state habeas petition
be filed within two years of final judgment where no appeal is pursued).
Hardy fails to demonstrate that any exceptional circumstances warrant the
consideration of his habeas petition at this time. In sum, Hardy's claims are
clearly unexhausted.

C.

Hardy's Motion to Amend

Hardy has filed a Motion to Amend his § 2254 Petition. (ECF No.
20.) In his Motion, Hardy requests leave to amend his § 2254 Petition to
assert more claims of ineffective assistance of counsel. (Id at 1-2.) Such
an amendment would be futile. As discussed above, the claims Hardy
raised in his § 2254 Petition are unexhausted. Moreover, Hardy has
provided no indication that the claims he seeks to add have been presented
to the Supreme Court of Virginia. Accordingly, it is RECOMMENDED
that Hardy's Motion to Amend (ECF No. 20) be DENIED.

D.

Conclusion

For the foregoing reasons, it is RECOMMENDED that the Court
GRANT Respondent's Motion to Dismiss (ECF No. 16) and DISMISS
WITHOUT PREJUDICE Hardy's § 2254 Petition for him to refile once he
has exhausted his state court remedies. It is also RECOMMENDED that
Hardy's Motion to Amend (ECF No. 20) be DENIED.
(Report and Recommendation 1-5 (alterations in original).)

II.

STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION
"The magistrate makes only a recommendation to this court. The recommendation

has no presumptive weight, and the responsibility to make a final determination remains
with this court." Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993) (citing

Mathews v. Weber, 423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C. § 636(b)(l). "The filing of
4

objections to a magistrate's report enables the district judge to focus attention on those

issues—factual and legal—that are at the heart of the parties' dispute." Thomas v. Arn,
474 U.S. 140, 147 (1985). When reviewing the magistrate's recommendation, this Court
"may also receive further evidence." 28 U.S.C. § 636(b)(1).
III.

HARDY'S OBJECTIONS

As an initial matter. Hardy wholly failed to comply with the directive set forth in
the Report and Recommendation that his objections be in the form of a numbered list.

Despite Hardy's failure to comply with the Court's directive, and without the benefit of
the numbered list, the Court construes Hardy to raise four objections.

Hardy first objects to the Roseboro^ notice that Respondent included with his
Motion to Dismiss. (Objs. 1.) Hardy contends that the notice only provided him with 20
days, not21 days, to respond to the Motion to Dismiss. {Id.) Hardy is correct that,

pursuant to the Court's Local Rules, the Roseboro notice should have provided him with

21 days to respond. See E.D. Va. Loc. Civ. R. 7(K)(1). However, Hardy's objection fails
to "direct the court to a specific error in the magistrate's proposed findings and
recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (citations
omitted). Accordingly, Hardy's first objection will be overruled.

Hardy next objects to the Magistrate Judge's characterization of the claims raised
in his § 2254 Petition as vague. (Objs. 2.) Hardy states that the form that was provided
"was clearly not formatted in a manner that would allow room for detailed infonnation

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

pertaining to all aspects of the plausibility as well as descriptive facts regarding my
ineffective counsel claim." (M) Again, this objection fails to "direct the court to a

specific errorin the magistrate's proposed findings and recommendations." Orpiano,
687 F.2d at 47 (citations omitted). Accordingly, Hardy's second objection will be
overruled.

As his third objection, Hardy faults the Court, the Commonwealth's Attorney's
Office, and his court-appointed attorney for failing to advise him that he needed to
exhaust his state remedies. (Objs. 2.) He also states that the only habeas corpus form
available to him at the time that he filed "was the 2254/2255 federal form." (Id.) Again,

this objection fails to "direct the court to a specific error in the magistrate's proposed
findings and recommendations." Orpiano, 687 F.2d at 47 (citations omitted). Moreover,
neitherthe Court nor counsel had an obligation to so advise HardyAccordingly,
Hardy's third objection will be overruled.

Finally, Hardy objects to the overall recommendation that his § 2254 Petition be
dismissed, claiming that "[his] case will not be heard, northoroughly investigated due to
the claim of failing to exhaust state remedies." (Objs. 2.) However, the dismissal of

Hardy's § 2254 Petition without prejudice does not bar him forever from seeking habeas
reliefin this Court. Rather, Hardy may refile his § 2254 Petition once he has exhausted

** The Court notes that the § 2254 Petition submitted by Hardy does include the following
warning: "CAUTION: To proceed in thefederal court, you must ordinarily first exhaust (use
up) your available state-court remedies oneach ground onwhich you request action by the
federal court." (§ 2254 Pet. 5 (emphasis omitted).)

all of his available state court remedies. Accordingly, Hardy's fourth objection will be
overruled.
IV.

CONCLUSION

Hardy's objections will be overruled. The Report and Recommendation (EOF

No. 22) will be accepted and adopted. The Motion to Dismiss (EOF No. 16) will be
granted. Hardy's Motion to Amend (EOF No. 20) will be denied. Hardy's § 2254

Petition (EOF No. 1) will be dismissed without prejudice. Hardy may refile once he has

exhausted his state court remedies. A certificate ofappealability will be denied.^
An appropriate Final Order will accompany this Memorandum Opinion.

/s/
HENRY E. HUDSON

Date: Tun^
ZOin
Richmond, Virginia

UNITED STATES DISTRICT JUDGE

^An appeal may not be taken from the final order in a §2254 proceeding unless ajudge issues a
certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(a). A COA will not issue unless a
prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v.
McDaniel, 529 U.S. 473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Hardy fails to meet this standard. Accordingly, the Court will deny a certificate of appealability.